S.Vasanthi vs The Secretary
2021 Latest Caselaw 4599 Mad

                                                                                    W.P.No.31436 of 2014

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED : 23.02.2021
                                                         CORAM
                               THE HONOURABLE MR.JUSTICE R.MAHADEVAN
                                                 W.P.No.31436 of 2014
                                                         and
                                                  M.P.No.1 of 2014

                      S.Vasanthi                                                 ... Petitioner

                                                            Vs.

                      1. The Secretary,
                         Government of Tamil Nadu
                         Rural Development and Local Administration,
                         Fort St. George, Chennai – 600 009.

                      2. The Director of Rural Development,
                         Panagal Building, Saidapet, Chennai – 600 015.

                      3. The District Collector,
                         Thiruvarur District, Thirvuarur.

                      4. The Commissioner,
                         Panchayat Union, Kodavasai,
                         Thiruvarur District.                                    ... Respondents

                             Petition filed under Article 226 of the Constitution of India to issue a
                      Writ of Certiorarified Mandamus, to call for records on the file of the fourth
                      respondent in connection with proceedings in Na.Ka.No.2086/2011/A5
                      dated 28.07.2014 and quash the same as unconstitutional and consequently


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                                                                                    W.P.No.31436 of 2014

                      direct the respondents to continue to grant all benefits by regularizing w.e.f.
                      20.09.1993 including arrears in the light of the judgment of the Division
                      Bench in W.A.No.763 of 2013 dated 03.04.2014.
                                         For Petitioner      : Mr.T.Aananthi

                                         For R1 to R3        : Mr.S.Thangavel,
                                                               Special Government Pleader

                                                              Mr.Mayilraj – R4

                                                       ORDER

This writ petition has been filed to quash the proceedings of the

fourth respondent in Na.Ka.No.2086/2011/A5 dated 28.07.2014 and

consequently, direct the respondents to continue to grant all benefits by

regularising the service of the petitioner with effect from 20.09.1993

including arrears, in the light of the judgment of the Division Bench in

W.A.No.763 of 2013 dated 03.04.2014.

2.According to the petitioner, she was appointed as Sweeper through

Employment Exchange by the fourth respondent on 15.09.1983 and she

joined the service on 21.09.1983 on consolidated pay with allowances.

Subsequently, her service was regularized with effect from 20.09.1993 upon

completion of 10 years and she was also granted regular scale of pay and

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increments with arrears including Selection Grade Pay by the fourth

respondent in his proceedings dated 06.02.2001 and 29.03.2005. While so,

the third respondent vide proceedings dated 11.09.2007 cancelled the order

of regularisation of the petitioner's service with effect from 20.09.1993 and

granted regularization with effect from the date of issuance of

G.O.Ms.No.161, Rural Development Department dated 26.06.2000.

Pursuant to the same, the pay and allowances granted to the petitioner were

refixed by the fourth respondent and accordingly, the excess amount of

Rs.1,06,034/- allegedly paid to her from 20.09.1993 to 30.09.2007 was

directed to be recovered from the salary of the petitioner. Challenging the

orders of revising the date of regularisation and recovery, the petitioner filed

W.P.No.19499 of 2011, which was disposed of on 26.06.2012 by setting

aside the impugned orders and remitting the matter back to the respondents

for fresh consideration and the amount already recovered was directed to be

refunded to the petitioner within a period of four weeks. Since the said order

was not complied with, within the stipulated period, the petitioner filed

Contempt Petition No.830 of 2013. During the pendency of the same, the

fourth respondent issued a show cause notice dated 03.06.2013, calling

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upon the petitioner to submit her explanation as to why her service should

not be regularised with effect from 26.06.2000 and thereafter, refunded the

amount recovered from the petitioner. Though the petitioner submitted her

explanation, the fourth respondent passed the order dated 28.07.2014,

regularising the service of the petitioner with effect from 26.06.2000, instead

of 20.09.1993. Feeling aggrieved, the petitioner is before this Court with the

present writ petition.

3.Upon notice, the respondents filed a detailed counter affidavit,

wherein, it is inter alia stated that the petitioner was initially appointed as

Sweeper purely on contingent basis with effect from 21.09.1983 in

Panchayat Union Dispensary at Serukalathur of Kodavasal Panchayat

Union; at the first instance, the services of the petitioner was brought into

regular time scale of pay on completion of 10 years of service ie., with effect

from 20.09.1993 as per the proceedings of the third respondent in

Rc.No.50/2000/A3 (RD) dated 23.01.2001 with reference to the

G.O.Ms.No.367, Rural Development (E7) Department, dated 22.12.1999

and G.O.Ms.No.161 Rural Development (E7) Department, dated

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26.06.2000; the matter of date of regularization of those contingent

employees was clarified and instructions were issued by the second

respondent vide letter No.13055/2000/E1 dated 03.08.2007 to the effect that

the contingent employees appointed in Panchayat Unions shall be brought

into regular Establishment only from the date of issue of the

G.O.Ms.No.161, Rural Development Department dated 26.06.2000;

consequently, the third respondent passed orders in

Rc.No.181/2007/A3(Dev) dated 11.09.2007, cancelling the earlier orders

regularising the services with effect from 20.09.1993 and regularised the

services of the petitioner with effect from the date of issuance of the

Government Order i.e., 26.06.2000; and based on the same, the fourth

respondent passed orders in Rc.No.1299/2007/A5 dated 12.10.2007 and

25.01.2008, which were impugned in WP.No.19499 of 2011. It is further

stated therein that after considering the explanation of the petitioner dated

21.04.2014, the fourth respondent passed the order dated 28.07.2014

regularising the services of the petitioner with effect from 26.06.2000, which

is challenged in this writ petition. It is also stated therein that the

Government is adopting a policy in the matter of regularization of temporary

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and contingent employees with effect from the date of issuance of the said

Government Order, since it involves huge expenditure in case of

regularization with retrospective effect; and that as a matter of right, the

petitioner cannot claim retrospective regularisation of services with effect

from the date of appointment, which was made purely on contingent basis.

With these averments, the respondents sought to dismiss this writ petition.

4.The learned counsel for the petitioner submitted that the issue

involved herein is covered by the judgment of a Division Bench of this Court

dated 03.04.2014 in W.A.No.763 of 2013 and hence, the case of the

petitioner may be directed to be considered in the light of the said decision.

5.Reiterating the averments made in the counter affidavit, the learned

Special Government Pleader appearing for the respondents made his

submissions.

6.This Court considered the rival submissions and also perused the

materials available on record.

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7.In this writ petition, the petitioner questioned the order passed by

the fourth respondent regularising her service only from the date of issuance

of G.O.Ms.No.161 dated 26.06.2000. According to her, it has to be

regularised on completion of 10 years of service i.e., 20.09.1993.

8.It is seen from the records that the petitioner already filed

WP.No.19499 of 2011 challenging the order of regularisation from the date

of issuance of G.O, besides questioning the order of recovery and this Court

in paragraph 9 of its order dated 26.06.2012 categorically observed that the

persons like the petitioner can claim regularisation only from the date of

creation of the post, as they were brought over from the contingency

establishment to the regular establishment; and it is a fundamental principle

of service jurisprudence that there must be a sanctioned post, for a person to

be absorbed or regularised. After observing so, the orders impugned therein

were set aside only on the limited ground of violation of the principles of

natural justice. It is further seen that in the case decided by the Division

Bench cited on the side of the petitioner, the appellant was sponsored by the

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Employment Exchange and he was appointed as Night Watchman on

04.11.1982; subsequently, he was promoted as office Assistant in the place

of one Subramaniam in the time scale pay of Rs.450-10-570-15-720 on

11.10.1985; thereafter, his services were regularised on 15.10.1986 and he

also got selection grade in the post of office Assistant on 18.11.1995; and

hence, it was held that the regularisation of his services from the date of

issuance of G.O.Ms.No.161 dated 26.06.2000, cannot be sustainable in law.

Whereas, here is the case, wherein the petitioner was engaged on

consolidated pay and her service was purely on temporary basis, till the date

of regularization. As such, the said decision of the Division Bench, in the

opinion of this Court, cannot be applicable to the facts of the present case.

9.However, in paragraph 13 of the counter affidavit filed by the

respondents, it is specifically averred that the petitioner instead of preferring

an appeal to the first respondent, rushed to this Court without exhausting the

appeal remedy. In view of the same, this Court finds it appropriate to direct

the petitioner to file an appeal before the first respondent as against the order

passed by the fourth respondent dated 28.07.2014.

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10.Accordingly, this writ petition stands disposed of, directing the

petitioner to file an appeal before the first respondent within a period of two

weeks from the date of receipt of a copy of this order. On filing of such

appeal by the petitioner, the first respondent shall consider the same and

pass appropriate orders, on merits and in accordance with law, without

influencing any observation made in this order, within a period of eight

weeks from the date of receipt of a copy of this order. No costs.

Consequently, connected Miscellaneous Petition is closed.

23.02.2021 Index: Yes/ No

vrc

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R.MAHADEVAN, J.

vrc

To

1. The Secretary, Government of Tamil Nadu Rural Development and Local Administration, Fort St. George, Chennai – 600 009.

2. The Director of Rural Development, Panagal Building, Saidapet, Chennai – 600 015.

3. The District Collector, Thiruvarur District, Thirvuarur.

4. The Commissioner, Panchayat Union, Kodavasai, Thiruvarur District.

W.P.No.31436 of 2014

23.02.2021

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